A Record Pace for Civil Lawsuit Filings

For good or ill, the filing of civil lawsuits is on the upswing. (See here and here.) Between January and June of 2007, 9,522 civil lawsuits were filed in Tulsa County District Court. For the same time last year, only 8,077 civil lawsuits were filed. According to the article, a large portion of the increase was due to the filing of lawsuits requesting money damages not exceeding $10,000.00. There was a only a modest increase in the number of lawsuits requesting more than $10,000.00 in damages. The article, which quotes Judge Russell Hass, indicates that part of the increase may relate to migration of small claims to the middle tier docket. Others blame the recent bankruptcy reform laws, which have apparently made it more likely that debtors will be sued. The article indicates that Tulsa County's record for total number of cases filed (in one year) was in 2003, when 17,082 civil lawsuits were filed.

The website for the Tulsa County District Court can be found here. You can search the Tulsa County District Court Docket here.

Football and the Courts

There was interesting article in the Tulsa World today (here and here), wherein the world of grade school football (yes, grade school football) intersected with the state and federal court system. A third grade football player and his father sought a court order forcing the Indian Nations Football Conference to allow the boy to enter the third-grade football draft or, alternatively, to hold the draft until the question of the child's residency could be settled. The child and his family live in the Union school district, but had made plans to move into the Jenks school district. The lawsuit apparently had a unique sense of urgency because the draft is scheduled for Sunday, July 22, 2007.

The boy and his father initially filed their petition in state court (to be heard by District Judge Gordon McAllister). They had also requested an emergency restraining order. However, the Indian Nations Football Conference filed a Notice of Removal, requesting that a federal judge hear the case. The conference argued that the plaintiffs were pursing a federal claim under 42 U.S.C. sec. 1983.

The federal case was initially assigned to Judge G. Frizzell, but, because of a conflict, the case was re-assigned to Judge C. Eagan. The case did not last long in federal court. In a sua sponte Order, Judge Eagan remanded the case back to state court. The Court found that the plaintiff had not pursued a federal claim in his petition. The plaintiffs' counsel had apparently informally told the defendant that he planned to file a claim under the 14th Amendment. However, the Court found this oral statement between counsel insufficient for purposes of federal question subject matter jurisdiction. "[A]n intent to revise a petition does not meet the 'face of the well-pleaded complaint rule.'"

The remand order sent the case back to state court, where both sides appeared before Judge McAllister. Judge McAllister apparently urged the parties to work out an agreement. And they did. The boy will be placed into a "blind draft" to determine which Jenks team he will be on, and his family must move into a house in the Jenks district. According to the article, the football conference, which includes Jenks, Union and 29 other districts, requires players to live in the districts in which they are playing. The rule is in place to prevent recuiting.

A New Pleading Standard

Rule 8 of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." And, for years, the federal standard for dismissal of a complaint for failure to state a claim was that "a complaint should not be dismissed . . . unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-45 (1957).

Well, things have changed. Maybe. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the U.S. Supreme Court appears to have adopted a different -- more amorphous -- standard. The Court stated that, while a complaint need not contain detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than "labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level." The threshold requirement of Rule 8(a)(2) is that the "plain statement" possess enough heft to "show that the pleader is entitled to relief." The Court described the requirement as one of "plausibility." The factual allegations must plausibly state a claim. The Court laid Conley to rest:

On such a focused and literal reading of Conley's “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery . . . . It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case . . .

We could go on, but there is no need to pile up further citations to show that Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.

Yet, in an opinion issued subsequent to Twombly, the U.S. Supreme Court held that the Tenth Circuit improperly dismissed a sec. 1983 claim for failure to state a claim. See Erickson v. Pardus, 127 S. Ct. 2197 (2007). Citing Twombly, the Court stated that "[s]pecific facts are not necessary; the statement need only 'give the defendant faire notice of what the claim is and the grounds upon which it rests.'" The Court held that the plaintiff had adequately stated a claim by alleging that his medication had been withheld and that prison officials were refusing treatment. The plaintiff, who was pro se, had also attached certain documents to his complaint.

Aside from Erickson, the Tenth Circuit Court of Appeals has already latched on to the Twombly standard. In The Ridge at Red Hawk, L.L.C v. Schneider, 2007 WL 1969681 (10th Cir. 2007), the Court (via Judge Kelly), recognized the new Twombly standard. Quoting Twombly, the Court noted that a complaint must contain "enough facts to state a claim to relief that is plausible on its face." In other words, the plaintiff must "nudge his claims across the line from conveivable to plausible."

Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

In another case, the Tenth Circuit discussed the Twombly and Erickson cases, and re-emphasized that the standard was one of "plausibility" -- courts should look at the "specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." See Alvarado v. KOB-TV, L.L.C., 2007 WL 2019752, 7 n.2 (10th Cir. 2007); see also Nasious v. Two Unknown BICE Agents, 2007 WL 1895877 (10th Cir. 2007) ("After all, these are, very basically put, the elements that enable the legal system to get weaving -- permitting the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits."); White v. Ockey, 2007 WL 1600483 (10th Cir. 2007) (affirming dismissal of Fair Housing Act claim because "the complaint [was] so bare of pertinent factual allegations"). Notably, Judge Payne from the Northern District of Oklahoma has applied Twombly in a recent decision.

An aside: the new Twombly standard does not apply in the state court system. Oklahoma state courts follow what one might call a hyper-Conley standard. A petition filed in state court cannot be dismissed for failure to state a claim "unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." See Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The Fanning Court did state that a plaintiff's pleading burden consisted of providing notice of the claim and "the grounds upon which they rest," implying that some factual recitation would be appropriate.

Educational Funding: Standing and Political Questions

Despite the Oklahoma Supreme Court's willingness to exercise its muscle to strike down certain recent legislation, (see here), the Court has also recently held that it could not review a particular lawsuit because it presented a non-justiciable political question. In Oklahoma Education Ass'n v. State ex re. Oklahoma Legislature, 2007 OK 30, 158 P.3d 1058, the Oklahoma Education Association and three school districts (Foyil, Western Heights, and Jenks) sued the Oklahoma legislature, including certain individual senators and representatives, arguing that the state legislature had failed in its duty to provide funding for common education. The plaintiffs alleged that the legislature thereby deprived school children of a constitutional right to a uniform opportunity to receive a "basic, adequate education according to standards set by the legislature, and deprived school districts of the ability to fulfill their constitutional and statutory duties to meet "contemporary educational standards established for every child."

The plaintiffs sought a declaration that the unfunded cost of meeting stautory education standards "exceeds one billion dollars" and that the unfunded capital needs of Oklahoma school districts "exceeds three billion dollars." The plaintiffs requested the Court order the legislature to design, formulate, adopt and fund a comprehensive system of educational funding, and to retain jurisdiction until the legislature had implemented the system.

The Court held that dismissal of the lawsuit was appropriate for two reasons: standing and justiciability.

Standing. The Court held that the OEA did not have standing to advocate on behalf of Oklahoma students. The OEA did not establish that any of its members were students. "As the OEA's members cannot vicariously assert injury to the constitutional rights of Oklahoma's students, neither can the OEA." The Court also held that the school district-plaintiffs failed "to allege facts which support[ed] their standing to assert the rights of all Oklahoma students." The Court noted that it is hesitant to address the constitutionality of a legislative act until presented with a proper case "in which it appears the complaining person has been or is about to be denied a right or privilege to which the person is lawfully entitled." The Court also disposed of the school district's argument that their standing could be based on their duty to comply with unfunded or partially-funded legislative mandates or risk sanctions or other penalties. The Court held that the Oklahoma Constitution imposed on the Legislature the duty to fund the school system, and that school districts and their boards are "but the vehicles which the Legislature uses to carry out this constitutional duty." The constitutional provisions impose no duty on local school districts, school boards, or school employees to maintain or establish public schools. Their standing arguments could therefore not be found in the state's unfunded mandates.

Political Question. The Court also held that it would be futile to allow Plaintiffs to amend their petition, and that dismissal with prejudice was therefore appropriate. This is because, even if the plaintiffs had standing to pursue their claims, the case presented a non-justiciable political question.

The Court noted that the Oklahoma Constitution charges the Legislature -- not the Courts -- with the duty to establish a public school system. The "Legislature has few constitutional restraints in carrying out its duty to establish and maintain a free public educational system." Fiscal policy is exclusively within the Legislature's power. The Court held that the plaintiffs were "attempting to circumvent the legislative process by having this Court interfere with and control the Legislature's domain of making fiscal-policy decisions and of setting educational policy by imposing mandates on the Legislature and by continuing to monitor and oversee the Legislature. To do as the plaintiffs ask would require this Court to invade the Legislature's power to determine policy. This we are constitutionally prohibited from doing."

Update on State Constitutional Challenges

A previous post discussed the Oklahoma Supreme Court's decision to strike down part of the state's workers compensation laws. In that case, the Court found that the law inappropriately limited the worker's compensation court's ability to consider certain evidence in assessing the degree of a claimant's disability. (According to the Court, the law inappropriately [and unconstitutionally] restricted the worker's compensation court's determination of "impairment" and "disability" to the range of opinions provided by the treating physician and the independent medical examiner.)

The Court's momentous decision has apparently had a significant political response. The decision is the subject of an article in the Tulsa World, (available here and here), where certain lawmakers have "vowed to respond to the opinion." In the article, the paper quotes the Senate Democratic Leader (Mike Morgan) as saying that the legislature will respond in a positive manner in the next legislative session. Sen. James Williamson, who co-chairs the Senate Judiciary Committee, believes the ruling will negatively impact the state's ability to recruit businesses, and said it was a "key factor in the workers comp reform bill." Williamson was critical of the Court's decision to strike the statute, noting that "every time we make one step forward the Supreme Court puts us two steps back."

Welcome to Picher, Oklahoma

This billboard sits directly in front of City Hall in Picher, Oklahoma, located in the far northeast corner of the state. For those unfamiliar, the Picher mines supplied a large percentage of the zinc and lead used to manufacture bullets from World War II through early Vietnam.

Working the mines left behind enormous piles of chat that perpetually dust the surrounding community of 20,000 with a residue laden with zinc, lead and cadmium.

From the most recent EPA report (June, 2007): "[T]he percentage of children with elevated blood lead levels remains well above state and national averages." The full report can be found here.

The New Five-Part "Garcetti-Pickering" Test

Following a recent Supreme Court case, Garcetti v. Cebalis, 126 S.Ct. 1921 (2006), freedom of speech retaliation claims are now governed by a new five-part test. In Garcetti, the Court held that speech by a public official is only protected if it is engaged-in as a private citizen, not if it is expressed as part of the official's public duties. (An audio recording of the oral argument for Garcetti can be found here.)

Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.

In evaluating retaliation claims, the district court now asks the following questions:

(1) Does the governmental employee speak "pursuant to his official duties"? If so, there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 126 S. Ct. at 1960.

(2) If the employee does not speak pursuant to his official duties, but instead speaks as a citizen, is the subject of the speech is a matter of public concern? If the speech is not a matter of public concern, the speech is not protected.

(3) If the employee speaks as a citizen on a matter of public concern, does the employee's interest in commenting on the issue outweigh the interest of the state as employer?

(4) Assuming the employee's interest outweighs the state's interest, was the employee's speech a "substantial factor or motivating factor in a detrimental employment decision"? The employee has the burden of showing this.

(5) Finally, if the employee established that his speech was such a factor, would the employer have taken the same action against the employee in the absence of the protected speech? The employer has the burden of showing this.

The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.

The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.

The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."

An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."

In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.

However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.

Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:

Public employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers. It promotes rather than undermines first amendment values when those who make decisions, and are held accountable for them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.

See Mills v. City of Evansville, Ind., 452 F.3d 646, 658 (7th Circ. 2006) (cited in Brammer-Hoetler). Further cases will undoubtedly refine the Garcetti-Pickering analysis.

Frontline Justice

The Tulsa World recently published an article devoted to the 70+ attorneys who volunteer their time for the benefit of the public and the Court. The article by David Harper can be found here.

When stripped of television and anecdotal stories of runaway juries, law and justice in the United States is typically doled out in the conference rooms of America. The overwhelming majority of cases filed are ultimately disposed by settlement or Court order. In this regard, adjunct settlement judges serve as the legal surrogate to Article III of our Constitution.

Considering the framers only provided for one court - the Supreme Court - there is little doubt they placed confidence in the wisdom of future courts to fashion these unique dispute resolution systems.

Initiative Petitions

Oklahoma is unique in that it allows citizens the right of iniative petition. The purpose is to allow the people to propose laws and, following a petition process, attempt to enact them into law through a vote at the polls. The right is anchored in the Oklahoma Constitution, Art. 5, sec. 1, which generally provides "the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

The Oklahoma Supreme Court has stated that this "fundamental and precious right is zealously protected," but that the right is not absolute. In re Initiative Petition 379, 2006 OK 89, 155 P.3d 32. Any citizen can protest the sufficiency of the initiative petition, and the Supreme Court must review the petition to ensure it complies with the rights and restrictions established by the legislature and the Courts.

And, of the three initiative petitions proposed this year, the Supreme Court has nullified each one. In a well-publicized opinion, the Court struck the "TABOR" petition, which would have set limits on the growth of state spending and would have required that surplus funds be placed in a constitutional emergeny fund. See In re Initiative Petition No. 379, 2006 OK 89. The Court held that the petition had to be stricken because of the mass involvement of out-of-state circulators in the signature-gathering process. The Court found a pervasive pattern of wrongdoing and fraud sufficient to strike the entire petition. The Court was obviously concerned that the TABOR initiative was not an Oklahoma petition, circulated by Oklahomans interested in changing Oklahoma law; rather, the Court found it was a campaign funded primarily by out-of-state organizations. (It is notable that the Court issued an early order in the case striking the petition, see 2006 OK 60, and later issued its lengthy opinion, see 2006 OK 89.)

In In re Initiative Petition No. 384, 2007 OK 48, the petition proposed a new law requiring school districts to expend 65% of their "operational expenditures" on "classroom instructional expenditures." In a 5-4 opinion, the Court struck the petition because it failed to contain an adequate "gist." The "gist" is a short statement placed at the top of each signature page (of the petition) attempting to describe the proposed legislation. The language of the "gist" was somewhat detailed, yet the Court found it insufficient because it failed to adequately describe the sanctions contained in the law for a particular school district's failure to comply with the proposed law.

Finally, in Terry v. Bishop, 2007 OK 29, the Court struck an initative petition which sought to rezone property to a single family residential district for a period of 10 years. The property had previously been zoned to allow the development of a new hospital. The district court refused to order the question be placed on the ballot, and the Supreme Court affirmed. The Court held that the petition was legally insufficient because it unconstitutionally sought to bind the city from exercising its legislative power to rezone.

It is clear that the Court has no qualms with striking an initiative petition when the petition appears to violate constitutional provisions; this is true, even where the initiative petitions are highly political in nature.

Qualified Immunity and the "Order-of-Battle"

Do you like your Constitution raw or well done? The recent Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007),* contains a concurrence by Justice Breyer questioning the Saucier framework in civil rights cases for deciding qualified immunity by requiring that courts find a constitutional violation before proceeding to an immunity analysis. As argued by Justice Breyer, this leads courts to issuing more and unnecessary opinions on constitutional questions.

Saucier itself is a two pronged analysis: was a constitutional right violated, and, if so, were the contours of the right sufficiently clear that a reasonable person would know their conduct violated clearly established law? If reasonable minds could differ, then qualified immunity applies. (Other cases describe qualified immunity as protecting all but the “plainly incompetent,” or “those who knowingly violate the law”).

In Scott, Justice Breyer complained that Saucier forces district courts to issue unnecessary constitutional decisions before disposing of cases on immunity grounds: “the order-of-battle rule violates that older, wiser judicial counsel not to pass on questions of constitutionality ... unless such adjudication is unavoidable.” Scott, 127 S.Ct. at 1780 (citations omitted).

Bolstering his critique, Justice Breyer points out that Saucier’s “order-of-battle,” “may immunize an incorrect constitutional ruling from review,” id, where a case is disposed on the second prong. Justice Breyer further argues that “order-of-battle” “will spawn constitutional rulings in areas of law so fact dependent that the result will be confusion rather than clarity.” Id.

And Justice Breyer is not alone. Joined by 28 States which filed amici briefs, and, most likely by Justices Ginsberg and Stevens, (if you accept the concurrence in Saucier as evidence), there is some momentum for change.

Of course, this momentum does not swing one way only. Saucier itself grounded the wisdom of resolving constitutional questions in principle building, or the establishment of legal guide posts for subsequent courts:

“In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001).

The contrast between Saucier and Justice Breyer could not be more clear, which gets back to the initial question: how do you like your Constitution, raw or well done?

*(The Scott decision is noteworthy as the first opinion in which the Court embeded a web link, which in this case directs the user to a video of the car chase at issue. The video can be found here).